Margarida Vasconcelos: Is the government’s new settlement for the United Kingdom within the European Union legally binding and irreversible?

Guest Blogger, 11 May 2016

The government claims that the new settlement for the United Kingdom within the European Union agreed by David Cameron and the other EU leaders at February’s European Council is an international law decision that is both legally binding and irreversible. First of all, it is important to stress that David Cameron has just sought some minor changes in four areas, economic governance, competitiveness, sovereignty and free movement, failing, therefore, to deliver the fundamental change that has been promised to the British people.

Nonetheless, it should be noted that even minor reforms would have required treaty amendments in order to secure a change to the status quo and a legally binding and irreversible effect, but most of David Cameron’s reform demands have been dealt with in the EU existing legal framework and there is solely a promise to amend the treaties to address two issues.

The decision on the new settlement will take effect on the same date as the government informs the Secretary-General of the Council that the UK has decided to remain a member of the EU. But it remains to be seen whether the deal that the government has secured would be honoured by the other EU member states and complied with by the EU institutions, particularly by the European Court of Justice. We ought therefore to ask whether the changes on the UK’s membership with the EU, which the government claims that have been secured, are “legally binding and irreversible”.

The decision of the EU heads of state or government, meeting within the European Council, on the new settlement, is not a decision of the European Council, which is a EU institution, hence it is not part of EU law. As the government argued, it is an international agreement, which is ‘legally binding and irreversible’ from the perspective of international law but it is not part of EU law and it is not legally binding on the EU institutions.

The decision does not provide for any formal requirement for the parties to express their consent to be bound and the Vienna Convention on the Law of Treaties does not require any particular ratification procedure for the decision to become biding. However, this must be ascertained by the member states in the light of their constitutional orders. Hence, some member states may only consider themselves bound by the decision after passing domestic legislation or following some domestic procedures.

In accordance with the Vienna Convention, and the decision itself, the UK’s new settlement, as an international agreement, cannot be amended or repealed without the agreement of all the EU heads of state or government. Hence, it can only be considered irreversible, under international law, in the sense that it cannot be amended or revoked without the UK’s consent. But, the fact that the decision is legally binding and irreversible under international law it does not mean that the other EU member states and the EU institutions will institute the various changes after the referendum takes place and that it is not open to challenges in national courts. The EU institutions are not parties to the decision, which, consequently, does not legally bind them. Hence, there is no insurance that the EU institutions will comply with the new settlement, which is, in fact, vulnerable to being struck down by the ECJ after the referendum takes place.

It must be stressed that there are no legal guarantees that all the results foreseen in the new settlement will be achieved and there is no way to enforce them, as the decision is not enforceable under EU law. The decision on the new settlement is not justiciable because the European Court of Justice has no competence to rule on the compliance of the agreement, as the acts adopted by representatives of the member states acting not in their capacity as members of the Council but as representatives of their governments are not subject to judicial review. Moreover, the decision does not contain any mechanism to enforce it, as it solely provides that “Any Member State may ask the President of the European Council that an issue relating to the application of this decision be discussed in the European Council.”

As the decision is not part of EU law, its validity cannot be challenged directly before the Court of Justice but it can be challenged in a national court, which can then ask the ECJ, through the preliminary ruling procedure, to interpret treaty provisions in areas covered by it. Although the ECJ has no competence to rule on the compliance of the agreement, it has competence to consider any potential conflict with the EU treaties. In fact, the ECJ has confirmed the principle of primacy of EU law over international agreements. Hence, in case of conflict, EU law takes precedence over the renegotiation decision. It is important to note that the UK courts, under the ECA 1972, are bound by the EU treaties and by the ECJ rulings hence, in case of conflict, they cannot enforce the decision as they are required to set aside any conflicting measure and give primacy to the EU treaties and their interpretation by the Court of Justice.

As the EU member states did not want to amend the treaties before the referendum, following Denmark and Ireland’s examples, they agreed on a mere interpretative agreement that just provides further clarification on the interpretation of existing commitments. The UK’s new settlement is not intended to change the treaties but to clarify or supplement them. However, regardless whether the EU member states are obliged under international law to interpret the treaties in line with the decision, the EU institutions are not bound by it. The EU institutions are at most required to take such clarifications into account when interpreting the EU treaties.

It is important to recall that the ECJ is the ultimate arbiter on the interpretation and validity of EU law. The Court might take the interpretations set up in the decision into account when interpreting the treaties but it is not obliged to follow and apply them. In fact, the Court is most likely not to consider itself bound by the decision, even where the interpretations agreed are not contra legem. Obviously, the Court won’t interpret the treaties in line with the new settlement if it finds it to be in conflict with EU law. Thus, against what the government said, the decision has no force before the Court.

The decision commits the EU member states to incorporate language on the meaning of ‘ever closer union’ and on the principles defining the relationship between non and Eurozone member states into the EU treaties. But such a commitment to amend the EU treaties has another substantial caveat, as it has to comply with the EU treaties amending procedures and with member states’ constitutional arrangements. Hence, it might be binding under international law but as far as EU law is concerned it is a political rather than a legally-binding commitment, which cannot be secured. The EU member states governments are under no obligation to amend the treaties as they just committed to take steps to agree treaty changes when possible.

The decision makes clear that it is subject to the procedures contained within the EU treaties and the constitutional requirements of member states. Obviously, the member states cannot change the treaties if this is not permitted by their constitutional requirements, namely if the amendments are rejected in a referendum, or a member state’s parliament does not agree to ratify them. Yet, until the decision provisions are incorporated into the EU treaties or a protocol attached to the treaties and ratified by all member states, which would give them the status of primary law, there is no insurance that the renegotiation package that has been agreed will be complied with by the EU institutions and other EU member states.

The decision of the heads of state and government also provides for changes through EU secondary legislation to address issues concerning the EU free movement and social benefits rules.

It commits the European Commission to put forward legislative proposals after the referendum takes place and if the UK has decided to remain a member of the EU. The Commission has been involved in the negotiations and made declarations of its intention to put forward legislative proposals to amend the regulation on the co-ordination of social security systems, to introduce changes to child benefits rules, and the directive on freedom of movement of workers, to introduce the so-called emergency brake on access to in-work benefits. However, these declarations are not legally binding and the European Commission is not bound by the decision. Nevertheless, even if the Commission puts forward legislative proposals they will require the support of a qualified majority of member states in the Council and a simple majority in the European Parliament to enter into force, and there is no guarantee that the MEPs will approve such legislation. The government is unlikely to get the European Commission, the other member states, and the European Parliament to agree to a satisfactory change to the EU secondary law.

The decision on the new settlement does not bind the EU institutions, and they must be involved in the legislative procedure. Hence, the secondary legislation envisaged in the decision cannot be described as “legally binding and irreversible” as there is no guarantee that it will be proposed, adopted and not declared void by the ECJ.

The decision also supplements the treaties by governing how member states will conduct themselves as Members of the Council in certain situations. There is a political commitment to adopt, if British people vote to stay in the EU, the draft Council decision intended to establish the so called emergency brake for non-Eurozone member states, which, if adopted, will be binding in EU law. Although the Council is most certain to adopt the draft decision, there is no mechanism under EU law that forces it to do it. Nonetheless, it is important to note that the emergency brake lacks enforceability, as the government is unlikely to be successful in challenging the adoption of a measure where the Council has ignored such procedure. The ECJ is most likely not to declare such measure void, as it won’t consider the emergency brake, which is not provided for in the treaties, as an infringement of an essential procedural requirement.

The decision also commits the member states, while acting as Council members, to discontinue a discussion of a draft legislative proposal and refrain from voting on it, if national parliaments have shown a red card, challenging its compliance with the principle of subsidiarity. However, these are not legally binding requirements as they are not foreseen in existing EU law. The Council is not obliged under the treaties to adopt a given proposal but if the Council decides to adopt it, in defiance of the red card procedure, this won’t be ground for annulment of the measure. The ECJ would not declare an EU act void because a red card was not observed if this is not provided in the treaties.

The UK government is claiming that it has ensured a “substantial, legally-binding, irreversible change in our membership of the EU”. But not only has the renegotiation package failed to deliver a fundamental change, it has also failed to deliver significant treaty changes, as the new settlement mainly entails clarifications and supplements the existing treaties in the four areas raised by the Prime Minister. Yet voters cannot rely on the so called “legally binding and irreversible” decision. Hence, British voters, in the forthcoming referendum, must be aware that no treaty amendments will be made before the referendum and that the limited changes that have been negotiated might not be delivered.

Margarida Vasconcelosis Head of Research at The European Foundation. You can visit The European Foundation’s website here.